DUI Checkpoint - .07 BAC

[CdwJava]

If there is no BAC test showing a result of .08 or higher, there will NOT be a suspension by the DMV unless you are convicted of DUI. They can only suspend for having a BAC of .08 or higher at that hearing (CVC 13353.2).

 

[larboard]

If there is no BAC test showing a result of .08 or higher, there will NOT be a suspension by the DMV unless you are convicted of DUI. They can only suspend for having a BAC of .08 or higher at that hearing (CVC 13353.2).

Are you speaking of the DMV hearing that occurs shortly after the arrest and is never set aside when the BAC is over .08 (mine was under .08 and set aside)? Realize the thread is a bit old and you may have forgotten the details.

Let's assume you mean the DMV hearing that takes place after a plea of Wet Reckless is accepted by the court. Does this mean I can get a Wet Reckless in court (assuming it's offered/negotiated with the help of the PD), then go to the subsequent DMV hearing and get a DUI anyway? Is this likely considering the circumstances and my driving record?

- larboard

 

[CdwJava]

Are you speaking of the DMV hearing that occurs shortly after the arrest and is never set aside when the BAC is over .08 (mine was under .08 and set aside)? Realize the thread is a bit old and you may have forgotten the details.

Yes, it has been a while. And, yes, I was speaking to the initial DMV hearing. After a conviction, their hands are largely tied.

Let's assume you mean the DMV hearing that takes place after a plea of Wet Reckless is accepted by the court. Does this mean I can get a Wet Reckless in court (assuming it's offered/negotiated with the help of the PD), then go to the subsequent DMV hearing and get a DUI anyway? Is this likely considering the circumstances and my driving record?

Assuming you are over 21, there appears to be no requirement by the DMV or the court for a license suspension for 23103/23103.5.

 

[larboard]

I think you need to make a decision right now on what your defense strategy will be. If you get a PD, you can bet he is going to want to plead you to a wet reckless charge and be done. You need to decide if that is reasonable to you or if you want to hold out for a dismissal. Lots of interesting discussion, but the point to focus on here is that since you were below the .08 line, it will be the burden of the prosecution to PROVE you were illegally impaired. If you were over .08, it would be your burden to prove you were not. This is a heavy burden for the prosecution. He doesn't have a great case. You could very well beat this deal. You just need to decide your acceptable level of risk.

I'm answering this separately re-quoting your post this time focusing on the chances of winning rather than the advantages of taking a Wet Reckless.

---

Let’s say I get the impression the PD doesn’t care or is too busy to spend any time with me and wants me to plea a quick Wet Reckless and get on to his other cases. But I decline, perhaps because I’m confident I was clear headed that night (albeit extremely nervous in front of the police) and want my first ever “day in court”. Will I have to use the same PD? Will I possibly get a more interested PD? Will I have to find a way to hire and pay for a DUI specialist lawyer (which is essentially not an option due to cost)?

Not mentioned in any detail in this lengthy thread is the way my FST test was done. Here are the facts I would swear to in court (other details of the arrest are as mentioned earlier):

- I cooperated with the officer fully.

- I walked the line heal to toe with my hands held tightly against my thighs a total of three times. First walked a line across the road (about ten feet) without stumbling at all or wobbling significantly, then along the road about ten feet with the same result. Finally I was taken to a darker area and walked a line on what seemed to be a crack in the road. I stumbled a bit on that test but the pavement wasn’t even. Note that I have problem feet (I wear 12 6E shoes even though I’m otherwise thin; also have numerous cracks and swells on the bottom of my feet due to a nerve related skin problem also present on my fingertips).

- I counted back from 100 no problem.

- On the follow the light on the end of the pen test I moved my head a bit at one point several seconds into the test. The checkpoint was in the process of “breaking camp” and there were other officers and attendants moving about within a few feet talking and distracting me.

- I took the breath test with the assurance I could later take the more accurate blood test if I failed. I was given the breath test three or four times with at least two gun like machines passed back and forth between the officers; the officers appeared to shake their heads in frustration after each test. Of course I don’t know what the results were at this time.

My guess is no or few PDs want to argue the merits of the FST but the test sure doesn’t seem fair for someone my age; especially the part about walking the line with palms held tightly against your side. Over the past few weeks I’ve done some informal testing with friends, none of them knew about the DUI before the test. Since heal to toe is known as a DUI test (and people might unfairly try to fail in the presence of others for political reasons) I made it a fun, competitive test of “physical fitness” mixing in several other tests (pushups, one legged stand, deep knee bends, toe touch and so on) before going heal to toe with palms pressed against our sides. None of us had a single drink but we are all well into middle age. Only two of five came close to walking the line with palms pressed against thighs without wobbling and/or stumbling at least a bit; of course it’s easy when you can use your arms to balance as in normal walking. Any reader can try this but to be fair to the FST you must try hard to pass the test.

Any thoughts on how the FST test I took compares to the experience of others? Is any of this worth mentioning to the busy PD or later in court; assuming I go to trial or in front of a judge short of a full trial?

- larboard

PS The final problem is one of time. I really need to move back East ASAP. Getting a Wet Reckless, prevailing at the subsequent DMV hearing and getting this behind me within a few months might be preferable to winning a case that might drag out much longer. Not sure of the time horizons of my options.

 

[larboard]

Assuming you are over 21, there appears to be no requirement by the DMV or the court for a license suspension for 23103/23103.5.

I'm well north of 21. By your above comment I assume your saying that based on my driving record and other facts of this case if I get the Wet Reckless (23103.5) plea accepted there's a decent chance I'll pass the DMV hearing (assuming I dress well, am respectful, and don't drive them crazy with lack of brevity ).

- larboard

 

[CdwJava]

I'm well north of 21. By your above comment I assume your saying that based on my driving record and other facts of this case if I get the Wet Reckless (23103.5) plea accepted there's a decent chance I'll pass the DMV hearing (assuming I dress well, am respectful, and don't drive them crazy with lack of brevity ).

- larboard

I am not sure what the DMV hearing is about? There is no mandatory suspension for a 23103.5, so it cannot be for that. That means it must be for the original violation. And since you apparently blew .07 for that one, there is no cause to suspend your license. My guess is this is a formality.

 

[larboard]

I am not sure what the DMV hearing is about? There is no mandatory suspension for a 23103.5, so it cannot be for that. That means it must be for the original violation. And since you apparently blew .07 for that one, there is no cause to suspend your license. My guess is this is a formality.

From reading is sounds like more than a formality. After entering "DUI vs Wet Reckless" into Google I read several California legal links that essentially said you still must "win" the DMV hearing which takes place after the criminal court proceedings (and when Wet Reckless is the outcome).

For example I'll quote in part (bolded where important and modified to be understandable with this forum software) from this link:
Plea Bargains in California DUI Cases

"A wet reckless is typically the first level of DUI reduction that the prosecution will consider. The "wet" in wet reckless means that alcohol (or for that matter, drugs) were involved in the arrest.

The main advantages of a "wet reckless" over a California DUI are that a wet reckless subjects you to

-less jail time,

-reduced fines, and

-no mandatory license suspension. (see note 1)

The significant downside is that, like a California DUI, a wet reckless charge is still priorable. This means that if you are convicted of a DUI within 10 years of your wet reckless conviction, you will be sentenced as a repeat offender."

Here's note 1:

"Even if your DUI charge is plea bargained down to a wet or dry reckless, you may still suffer a drivers license suspension if you lose your DUI DMV hearing. To avoid a license suspension altogether, you must both get your DUI charge reduced in court to a lesser offense and win your DMV hearing."

Other links make reference to the "DMV hearing" after the court proceedings. They all mention that the DMV hearing still must be "won" in order to avoid license suspension and the four months of classes.

Wet Reckless followed by a "win" at the DMV hearing is a relatively acceptable outcome for me as there will be no future DUI's in my case i.e., the ten period where a "Wet Reckless" acts like a DUI charge for a repeat offense doesn't matter assuming I'm super cautious. Not having to stay in California an extra four months to take classes is also a huge benefit.

Anyway, hope this helps.

- larboard

 

[CdwJava]

I believe that presumes you pled down to a wet reckless from a DUI where the BAC was .08 or greater. Since you appear to have had a BAC of .07 that should not be an issue.